We are delighted to welcome back Ntina Tzouvala who is Deputy Co-Convener of Law and Global Justice and a PhD candidate at Durham Law School. She is currently researching on history and theory of public international law. You can follow her on Twitter @ntinatzouvala

Around a month ago the Wall Street Journal published an article entitled ‘The Anti-Vaccination Epidemic’ , which summarises an ongoing and worrying trend: diseases like mumps, measles and whooping cough are reappearing in the Western world. The reason for this is comeback is the growing anti-vaccination movement both in the US and Europe. Fueled by (dubious) publications that falsely associated certain vaccines (MMR) with autism, and by overemphasising highly exceptional cases of severe side-effects, the participants in anti-vaccination movements refuse to vaccinate their children. Apart from a heavy reliance to conspiracy theories, these movements also rely on the undeniable success the very social practice they oppose: we are no longer afraid of smallpox or rubella precisely thanks to being immunized against them at a very young age. The fact is that historically these diseases claimed the lives of millions of children and if the anti-vaccination movement prevails, they will do so again. The only way for parents to keep their children out of the ‘system’ without seriously endangering them is for them to fail politically: a few free-riders will still be safe given the overall eradication of the diseases due to the overall high rates of vaccination. But if the public campaign of these parents succeeds, then this shield will collapse and it is a matter of time before epidemics of smaller or larger scale return.

What is of interest here are the legal justifications provided by parents for their actions. (Un)surprisingly, there is a long history of civil liberties rhetoric in the UK against compulsory immunisation. After vaccination was made compulsory in 1840 the British society was in unrest and in 1878 a member of the Anti-Compulsory Vaccination League argued:

‘I. It is the bounden duty of parliament to protect all the rights of man.

By the vaccination acts, which trample upon the right of parents to protect their children from disease, parliament has reversed its function.

III. As parliament, instead of guarding the liberty of the subject, has invaded this liberty by rendering good health a crime, punishable by fine or imprisonment, inflicted on dutiful parents, parliament is deserving of public condemnation.’

Given the general distrust towards governmental intervention at the time and importantly, given that the only conceivable rights at play seemed to be those of the parents, the law was amended in 1898. The amended version arguably introduced the concept of ‘conscientious objector’ in British law, allowing parents who ‘did not believe’ in the effectiveness of immunisation to opt out.

Contemporary protesters rely on the same legal and scientific (in the broadest sense of the word) arguments to justify their choice not to vaccinate their children. This post is not concerned with explaining how science has progressed since then rendering any overall challenge to the practice implausible. What is of our concern here is the modification of the legal background since the end of the 19th century. Two things need to be noted here: first, the classical, liberal conceptualisation of rights as shields against state interference is now complemented -to an extent- by an understanding that state intervention is necessary for the meaningful enjoyment of such rights, especially by vulnerable groups. Further, the conviction that children enjoy rights that are not identifiable with those of their parents has entered the legal equation. In the international realm this conviction is materialised through the Convention of the Rights of the Child (CRC hereafter), an instrument that according to UNICEF changed the way we see children from passive objects of care and charity to human beings with a distinct set of rights.

Sadly, any analysis based on the CRC is not applicable in the US, since the state has signed but not ratified the Convention. Nevertheless, it is applicable almost worldwide, and therefore we need to pay close attention to it. Directly relevant here are the Article 24 on the right to health and the General Comment 15 of the CRC Committee that elaborates the details of the right. Moreover, Article 3 para. 1 stipulating that all decision-making should be guided by the ‘best interests of the child’, Article 12 dictating that children should be provided ‘the opportunity to be heard’ and ‘due weight’ should be given to their opinions and finally, Articles 5 and 14 that guarantee parental rights are significant for this debate.

More specifically, Article 24 stipulates that children are entitled to the enjoyment of the ‘highest attainable standard of health’, they should not be deprived of their right of access to such health care services’, while there are explicit references to preventative health care and utilisation of technology, in order to promote the right to health. Moreover, we are confronted with one of these (rare) circumstances when there is a rather objective basis for judging what is ‘at the best interests of the child’. In principle, pluralistic societies with different and often conflicting understandings of what amounts to ‘good life’ grant parents with a wide margin of appreciation (in the non-Strasbourgian, ordinary sense of the term) in the making of such decisions. However, vaccinations are specific in two interrelated ways. General Comment 15 obliges the states to decide on Article 24- related issues according to ‘evidence-based public health standards and good practices’, setting therefore a rather objective, scientific standard for what is at the best interest of the child. Further, in its commentary on Article 3 the Committee clarifies that ‘best interests’ apply both to individual children and ‘children as a group’. This is of importance, since refusal to vaccinate one’s children is in many aspects dissimilar from refusing, for example, blood transfusion on religious grounds. In the latter case it is the specific child that is endangered (which is bad enough), whereas in the former there are legitimate general public health concerns. Moreover, this practice endangers these vulnerable children who due to genuine medical reasons cannot be vaccinated. Luckily, when immunisation levels are high these children’s health is protected thanks to our ‘herd immunity’. They might not be immune to the disease themselves, but they will probably never face the risk anyway, since everyone else is and therefore it is highly unlikely for them to be infected. Any state policy towards the anti-vaccination movement needs to take into account the rights and best interests of these children as well.

Another legal argument invoked by parents is that compulsory vaccination violates their (and their children’s) right private and family life under Article 8 of the ECHR. This argument does not seem to be legally tenable. In fact, the European Court of Human Rights had the chance to rule on Article 8 and compulsory vaccination in 2012 in Solomakhin v Ukraine. It needs to be stressed that when Solomakhin was subjected to compulsory vaccination he was a full- grown adult. Still, the court found that even though compulsory vaccination evidently interfered with his bodily integrity and therefore fell under Article 8, the interference was justified in a democratic society as it ‘could be said to be justified by the public health considerations and necessity to control the spreading of infectious diseases in the region.’ Arguably, if this is the case when it comes to a 35-year-old man, it is highly unlikely that the ECtHR would find a violation of the parents’ rights when it comes to vaccinating children 1 or 5 years old (these are ages the two rounds of MMR vaccination commonly take place), especially if we take into account the children’s rights under the ECHR and the CRC.

This does not necessarily imply that states are under an obligation to introduce compulsory vaccination for children. Questions of policy efficiency are of direct concern here and each state can make to appropriate choices taking into account the rights and interests of all individuals concerned and , of course, the interests of the society as a whole with a special focus on its more vulnerable members who arguably will suffer disproportionally from a disease outbreak. For example, in the light of the overall circumstances a state might choose to initiate an information campaign rather than resort to criminalisation of parents that refuse to vaccinate their children. Nevertheless, it needs to be stressed that the rights- based rhetoric of the anti-vaccination movement does not seem to take into account the actual international human rights documents and courts decisions. Further, this human rights rhetoric draws from an intellectual and political tradition with a very narrow understanding of human rights and, importantly, a very exclusionary conceptualisation of who is actually the bearer of these rights.

One final note: it is very easy and very appealing to dismiss these movements as manifestations of lunacy and poor education. Nevertheless, this attitude does not explain why and how these movements are fuelled periodically and more specifically now that no major publication (however ill-researched) on the topic has come out. My feeling is that- up to an extent- the revival or appearance of such movements is attributable to an overall distrust towards the state and a trend to conceptualise the private sphere exclusively as one of freedom and, in this case, care and love. Arguably, these sentiments are cultivated by states themselves through their turn to a neoliberal agenda that discredits any conception of public good and prioritises a very narrow understanding of what it means to live in a society, and even to be an individual. Interestingly, children’s rights and children’s welfare more broadly is one of the starkest examples of how less state involvement does not necessarily lead to more freedom. Rather it can well lead to an increase of private power, which being private, and in this case accompanied by love and affection, is not easily identifiable.